Comments on The New FISATypePad2007-08-07T05:25:09ZUChicagoLawhttp://uchicagolaw.typepad.com/faculty/tag:typepad.com,2003:http://uchicagolaw.typepad.com/faculty/2007/08/the-new-fisa/comments/atom.xml/ekf commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ed0400a88332007-08-23T21:30:48Z2007-08-23T21:30:49ZekfSo, this "If you have nothing to hide, you have nothing to fear," business -- why doesn't it apply to...<p>So, this &quot;If you have nothing to hide, you have nothing to fear,&quot; business -- why doesn&#39;t it apply to the federal government? I mean, I&#39;d be happy to consider FISA changes if they&#39;d tell us what the hell they intend to do with these powers they&#39;ve been using illegally and without consequence for the last five years. But as long as the answer from the executive branch is &quot;Trust us. We&#39;re doing it for your own good,&quot; my answer must needs be &quot;I&#39;ll trust you if you&#39;ll trust me. If you need to monitor my communication, then I get to monitor your monitoring program.&quot; Should be only fair...unless they have something to hide, that is.</p>
<p>Also, the whole pseudo-intellectual-masturbation fest above is full of crap, left and right. Bush and his administration broke the law, his current head of the NSA admits that they these changes so that they&#39;re no longer breaking the law, and they&#39;re actively seeking retroactive immunity for the telecommunications companies who aided and abetted their felonious behavior, which is a further acknowledgment that the actions taken for the last five years have been with full knowledge of and purpose in their illegality. The bizarre contortions to attempt to legitimize what are clear grounds for impeachment and removal of this President are the legal theory equivalent of using excrement to mold an exquisite statue -- might look nice, but get near it and you see that it smells terrible.</p>Joan A. Conway commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ed0056088332007-08-23T18:33:34Z2007-08-23T18:33:35ZJoan A. ConwayI read George Tennet's book, of which I believe it was titled "The Perfect Storm." He was trapped with his...<p>I read George Tennet&#39;s book, of which I believe it was titled &quot;The Perfect Storm.&quot;</p>
<p>He was trapped with his 16 words in Bush&#39;s Address of the Union speech, as predicting the outcome of the Iraqi War.</p>
<p>It appears to me that Bush was using his executive power to indoctrinate George Tennet into the professionalism that George &quot;T&quot; lacked. Mr. T was trusting authority and thought he could make a different in the underfunded CIA, and its many flaws. Bush knowing how faulty the CIA was needed a fall-guy, and someone who could be sold to the public as a worthy general against the Mid-East, ancient Persian culture, a Greek, where many other highly professionals with more seniority declined the offer. Facing the insurmountable task, Tennet, did a remarkable job. Bush covered his tracks as President&#39;s always do! American security is inconsistent with a lot of cracks in its infrastructure. It is built on TRUST. It is a myth, and magical thinking abounds. The intelligence was there, but for want of believers. Those who could authorize more security were disbelievers falling trapped to their supreme authority over the world. The intelligence was limited to a few and not widely circulated because of the need &quot;For Your Eyes Only.&quot; Intelligence is a political tool for those who can profit from not reading it, or refusing to recognize it, and acting blind to it, namely our Presidents, Clinton and Bush, for whatever reason that they thought they could negotiate us out of danger, and call the terriorts, Bin Laden&#39;s bluff. They had their eye on Sadam and his territory, Iraq. They are the oil men!</p>Roach commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee2b3e788342007-08-22T20:21:03Z2007-08-22T20:21:04ZRoachhttp://www.mansizedtarget.comWe had very limited intelligence, dude, and they couldn't easily share it with the FBI because of the Nixon-era restrictions....<p>We had very limited intelligence, dude, and they couldn&#39;t easily share it with the FBI because of the Nixon-era restrictions. I have no love for Tenet and have no doubt that the CIA could have done better, but going forward we need information to turn into intelligence and that just doesn&#39;t drop out of the sky. It takes human intelligence, which takes interrogation, which takes keeping these dirtbags away from US courts and lawyers and in dirty holes in Cuba and Afghanistan. </p>LAK commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ed0196788332007-08-22T19:26:08Z2007-08-23T18:39:41ZLAKExcept that it wasn't a deficiency in intelligence that was cited as Tenent's flaw, it was his and the CIA's...<p>Except that it wasn&#39;t a deficiency in intelligence that was cited as Tenent&#39;s flaw, it was his and the CIA&#39;s use of it. So you&#39;re wrong, as per usual, Roach. Read the report or an article on it before you pipe up. We had the intelligence, as the report makes clear.</p>Roach commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ed0144888332007-08-22T18:19:44Z2007-08-23T18:38:29ZRoachhttp://www.mansizedtarget.comA competent CIA aimed at terrorists require good intelligence, which requires lots of agents who speak Arabic and can infiltrate...<p>A competent CIA aimed at terrorists require good intelligence, which requires lots of agents who speak Arabic and can infiltrate these organizations. It also means lots of interrogations of captured al Qaeda members and suspects. But the Left doesn&#39;t really believe that we should treat these guys any differently than ordinary criminal suspects, so there is no realistic way to have a better CIA if the left&#39;s prescriptions are followed. Saying &quot;have a better CIA&quot; while undercutting the sine qua non of good intelligence is what psychologists would call &quot;magical thinking.&quot;</p>LAK commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee4e61188342007-08-22T17:18:09Z2007-08-23T18:37:03ZLAKGive it some time Joan. The Iriash Jews and Italians took a hundred years to assimilate too. So you think...<p>Give it some time Joan. The Iriash Jews and Italians took a hundred years to assimilate too. </p>
<p>So you think Posner and Vermule might amend their argument knowing that the CIA basically said it and tennant completely blew it with respect to 9/11 today? I mean, you could still argue that 9/11 changed everything and put us in such danger as to require an Executive who can ignore the constitution, however it seems there are far less restrictive ways to achieve security, namely having a competent CIA, or perhaps better foreign policy.</p>Joan A. Conway commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee46f4988342007-08-21T21:02:33Z2007-08-23T18:22:12ZJoan A. ConwayEven saying "It is a century of imperialism and second class status in the world for muslims that is the...<p>Even saying &quot;It is a century of imperialism and second class status in the world for muslims that is the problem,&quot; does not address their lack of integration in the United States. Drive down Devon Avenue, and you will see a Bazaar of cheap merchandize, run-down stores, reminders that women are still in functions a female submission, and sex objects, as nurses with their figurines being sold in stores bearing their chests.</p>
<p>I know other nationalities do the same. The Irish still have families in Ireland, as do the Polish, and the Greeks, and other ethnic groups. I would say this is our failure to assimulate these people into our culture, and the acceptance of our laws and civil rights. Why are we rolling back these civil rights on people who don&#39;t recognize individual liberties in the first place?</p>LAK commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee481f788342007-08-21T20:52:50Z2007-08-23T18:24:39ZLAKAnd resh, you;ll note I do say: "Further, Posner and Vermule fail to recgonize that if we are indeed at...<p>And resh, you;ll note I do say: &quot;Further, Posner and Vermule fail to recgonize that if we are indeed at greater risk from terrorism than ever before, it may be because the executive branch has overstepped its authority in the first place.&quot;</p>
<p>So not only is there a distiction between teh threat to the average citizen and the incidence of terrorism globally, I offer the argument in the alternative assuming arguendo that the we are under greater risk. But you can still eat your biscuit little guy!</p>LAK commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee46d3288342007-08-21T20:47:26Z2007-08-23T18:21:51ZLAKResh, I certainly don't imply all muslims hate us, but those that do have cited our presence and meddling in...<p>Resh, </p>
<p>I certainly don&#39;t imply all muslims hate us, but those that do have cited our presence and meddling in their countries on too numerous occasions to cite as their reason to resort to violence. And I don&#39;t think it is a stretch to conclude that their complaining about western presence in their countries for the last 200 years has somehing to do with anger at being behind the west, being exploited by the West and being at our mercy for so many years. </p>
<p>And you seem not to make the distinction bewteen the threat of terrorism to the average U.S. citizen, which is far less than the threat of heart disease or even car accident, and the general threat of global terrorism which thank god, happens mostly in those countries we have invaded and occupy. I recognize we are under some threat of terrorism in this country, I juts don&#39;t think any mroe than we were before 9/11, which seems to be the foundation for Posner and Vermule&#39;s argument that the President can piss on the constitution. And that our foreign policy has contributed to an increase in terrorism and a threat to our interests is not mutually exclusive to that idea whatsoever. Terrorism has increased around the world due to George Bush&#39;s bellicose ways, just not so much for citizen in this country. Can you grasp that distinction now? I know it might be tough for you, but it is real one you seem to have missed. But I&#39;m glad you got all excited. Here&#39;s a biscuit. </p>reshufflex commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ecfde4488332007-08-21T20:02:34Z2007-08-23T18:23:16ZreshufflexHi Lak, Way to indict those Muslims. Let me quote: "It is a century of imperialism and second class status...<p>Hi Lak,</p>
<p>Way to indict those Muslims. Let me quote: &quot;It is a century of imperialism and second class status in the world for muslims that is the problem.&quot;</p>
<p>I submit you know squat about Muslims or their relgion. First of all, the whole of Muslims are more than content with their status quo, inasmuch as their religion devalues (especially western-type) materialism and egalitarian posturing. And I shalln&#39;t even elaborate on how most of them embrace their religion for its corporeal and spiritual peacefulness. So let&#39;s dispense with this goofiness that has all the Muslims running around like enraged lions because the West and the neocon phalanx has denied them social accoutrements and privilege. That&#39;s absurd. </p>
<p>Secondly, the Muslim &quot;problem&quot; is manifested in the form of terrorism by a bare handful of extremists-keenly, the Salafists and Wahhabists. And if we isolate their &quot;problem&quot; further, we&#39;ll see it is comprised of rather atavistic, retrograde ideas that transcend your simplistic, surely-it&#39;s-the-west&#39;s-fault analysis. Since I already gave you ample resources that defines and legitimates this extremism (in their cold-blooded eyes), I wont offer more. Suffice to say that you ought to try and understand-and accept- their want for a return to the Caliphate. It is as authentic in its pursuit, and as mindless in its folly, as christians seeking the heavens.</p>
<p>Your rhetoric, btw, is getting the better of you. In one breath, you announce how there&#39;s no increase in terrorism to justify this added &quot;security,&quot; and in the next breath, youre telling us how our (surely it&#39;s the current regime) imperialism is increasing terrorism. Please make up your mind. </p>
<p>Stop kidding yourself. Terrorism is here to stay. Deal with it, dude. The days of playing in our tidy democratic shangri la are over. There&#39;s a madness out there whether you want to see it or not. </p>LAK commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee453f388342007-08-21T18:14:39Z2007-08-23T18:17:56ZLAKHow absurd are Vermule and Posner: "So what we need to see is that 9/11 does not, or not only,...<p>How absurd are Vermule and Posner:</p>
<p>&quot;So what we need to see is that 9/11 does not, or not only, justify giving the president temporary emergency powers. What it has done is effect a permanent change in the Constitution, a permanent (at least until conditions change dramatically yet again) enhancement of executive power at the expense of Congress and the judiciary. The reason for this constitutional change is very simple: the public is more vulnerable to a devastating terrorist attack today than it has been in the past, and the executive is in the best position to protect the public.&quot;</p>
<p>I mean I&#39;ve seen no proof other than Fox News style scare tatcics that we are any more in danger than we were before 9/11. Further, Posner and Vermule fail to recgonize that if we are indeed at greater risk from terrorism than ever before, it may be because the executive branch has overstepped its authority in the first place. They are putting the cart before the horse. This war has been the cause of a lot of resentment around the world and is likely responsible for much of the increased anger and at the US and increased terrorist threat. And this war was the result of an Executive branch that overstepped its authority and a Congress that was complicit in allowing him to do so. We need mroe than ever a Congress that reigns in the pentagon and the xecutive branch. The fact that we are at war without any kind of formal declaration is the problem. The fact that our Executive branch and the pentagon have created an unprecendented war machine that is all over the world thanks to the Cold war is the problem.</p>
<p>It is patently aburd to base their arguments for expanded executive powere on a terrorist threat that they neiter show has increased, and which they fail to analyze for cause. they start with the premise that we are under an increased threat to justify expanded executive poweres, when those very executive powers might be the cuase of the increased trheat itself. It is a pretty weak argument. Certainly conseidereing they acknowlegde that such expanded Executive powere migh encraoch on long established constitutional principles. As we all know if you are going to do that you&#39;d beeter be doingit the least restrictive way. That calls for an analysis of why we are under an increased threat in the first place. I know the Fox News crowd likes to argue it is inherent in their religion 9they just want all the infidels dead!), but it is not. It is a century of imperialism and second class status in the world for muslims that is the problem. It is our bloated military and the legacy of the cold war and our military presence in their countries for ages. </p>
<p>Simply stating with teh premise tahtw e are unde3rattacka nd then using thatto justify an argument that Executive powers can be expanded as needed, even going so far as to violate clear constitutional precedents is WEAK SAUCE.</p>Frederick Hamilton commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ecf48d788332007-08-20T13:18:34Z2007-08-23T17:46:41ZFrederick HamiltonLAK and Catapult, If and Suppose. Indeed, "If" and "suppose" the government isn't using the statute to keep us safe...<p>LAK and Catapult,</p>
<p>If and Suppose. Indeed, &quot;If&quot; and &quot;suppose&quot; the government isn&#39;t using the statute to keep us safe from terrorists and intercepting terrorist&#39;s communications but is actually using it to keep an eye and ear on citizens in their everyday communications. Indeed, that would be a reason for invalidating the program. More than that it would be a reason for giving Congress hell for not doing their oversight. It would be a reason for impeaching the president. It would be a reason for members of NSA, CIA and FBI to go to jail. After impeachment, it would be a reason for the president to go to jail (if constitutionally possible after impeachment). But alas, methinks those &quot;ifs&quot; and &quot;supposes&quot; are just that. And sorry, the constitution does allow the commander in chief to spy on the enemy in a time of war, in or out of the United States. The operative word is &quot;enemy&quot;. Not U.S. citizens, unless the executive can show the citizens are part of the enemy (Tokyo Rose, German spies caught on our soil, et al). Peace.</p>Catapult commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ecf1b9388332007-08-20T02:49:31Z2007-08-23T17:39:42ZCatapultThis nonsense about the FISA statute is a red herring intended to divert attention away from the central issue of...<p>This nonsense about the FISA statute is a red herring intended to divert attention away from the central issue of this string. No one on this post (not even LAK, presumably) is contesting the fact that the statute was properly passed, signed, and enacted. Whether that withstands judicial scrutiny remains to be seen, which is why the case heard by the Ninth Circuit panel last week is important -- constitutional challenges are being dismissed on standing grounds without putative plaintiffs&#39; having the right to see the information that could prove their case. All in the name of &quot;state secrets.&quot; You see the circularity problem, I&#39;m sure. And you all seem like healthy skeptics of the &quot;trust us, we&#39;re the government&quot; mantra.<br />
Obviously, the question of constitutionality comes in the FISA law&#39;s application. Suppose -- and this is not a wild-eyed supposition, given what we know about ISPs&#39; and phone companies&#39; letting government dip into their databases, networks, records, and the like -- that the overzealous NSA makes much broader sweeps of electronic information (including, for instance, data mining and keyword searches, etc.) from U.S. citizens with no involvement with terrorism. Suppose, in such a case, that information is used for other purposes -- separate and apart from &quot;the war on terror.&quot; The problem then is that information is accessible to the government, and privacy rights are terribly infringed upon, outside the scope of the purported rationale for the electronic surveillance. Don&#39;t you see how that is problematic?<br />
And can you see how the FISA statute is then used for governmental action the exceeds the purpose (or dare I say &quot;legislative intent&quot;) of the statute? That is when your procedural defense of the statute being valid falls apart because, in that situation, the government is acting outside of its mandate. That&#39;s not democracy. Can we agree on that?</p>LAK commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee1d9a988342007-08-17T17:50:27Z2007-08-20T13:26:20ZLAKAfter educating myself about what teh 9th Cir. hearings are about I should qualify that the hearing is "on the...<p>After educating myself about what teh 9th Cir. hearings are about I should qualify that the hearing is &quot;on the merits,&quot; but not of the constitutionality of the NSA program, rather the threashold issue on the state secrets classification that the governemnt has used to keep plaintiffs from being able to show they have standing. We have a while before we get to the main issue of teh constitutionality fo the NSA program, and/or the amended version FISA that allows wiretaps without cause or a warrant.</p>LAK commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee1cbb188342007-08-17T17:09:47Z2007-08-20T11:43:05ZLAKFrederick, if it turns out the NSA program isn't just targeting terrorists, but is a blanket electronic surveillence system monitoring...<p>Frederick, if it turns out the NSA program isn&#39;t just targeting terrorists, but is a blanket electronic surveillence system monitoring the emails and phone calls of all average citizens leaving our shores, does your opinion change? Indeed then it would be true that my rights have been implicated, as a citizen, who is decidedly not an enemy, which appears to be teh basis for your claim that the commander in cheif can ignore the 4th Amendment and the long standing precedent on wiretaps.</p>
<p>It is a ridiculous argument to think that the President through his powers as commander in cheif could violate not just the bright lines put in place by the supreme court with respect to oarrants being required for phone taps, but the plain language of the Constitution itself with respect to having cause for warrants. Especially when there has been no declaration of war by Congress. </p>
<p>The point is, &quot;the law&quot; can conflict with itself, as it is doing right now (as it did when Congress passed flag burning legislation) when legislation is unconstitutional. Thank god for the supremacy clause! We shall see though.</p>
<p>P.S. what is going on in the 9th circuit to my knowledge is still just a standing inquiry. Should they dismiss the cases for lack of standing and hold the government does not have to reveal evidence of monitoring to the plaintiffs so that they can establish standing, that would not be &quot;on the merits.&quot; The merits are the constitutionality fo the NSA program, not whether particular plaintiffs can show they have standing.</p>
<p>It scares me that a guy as smart as you Frederick, does not realize how much is at stake down the road once you start letting the government monitor its citizens without any cause. It is bizzare there are so many U of C neoconservatives. Why the neocon nonsense? When did it become so popular? Where are all the classic U of C conservatives with healthy liberatrian leanings?</p>Frederick Hamilton commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee1a03988342007-08-17T14:09:18Z2007-08-20T00:02:50ZFrederick HamiltonSorry, partisan<p>Sorry, partisan</p>Frederick Hamilton commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee1a04988342007-08-17T14:07:40Z2007-08-20T00:05:17ZFrederick HamiltonLAK, I draw the line at final determinations of law by the courts. I listened to the 9th Circuits Appeals...<p>LAK,<br />
I draw the line at final determinations of law by the courts. I listened to the 9th Circuits Appeals Court case this morning on C-Span. Don&#39;t try to read to much into the judges being tough questioners on all participants. After listening to the pleadings to me it seemed that the government on the merits will prevail at the 9th Circuit Appeals Court. We should know in a few weeks/months.</p>
<p>Yes, the Constitution is a marvelous document. All three branches must work within its confines.</p>
<p>The final arbiter of constitutionality is of course the people themselves. Not nine black robed men and women. </p>
<p>By and large unless constitutional amendments by the people when they are so driven prevail, the final arbiter is the Supreme Court.</p>
<p>So far, the Supreme Court has not been heard from much. Other than in the Militray Tribunals area and there they encouraged Congress to pass laws setting up the Military Tribunals, which Congress did and the President signed into law.</p>
<p>Again, most of the scholars I have read say that the powers of the commander in chief as articulated in the constitution would give the executive the power to spy on the enemy in a time of war and to allow for secrets kept from Congressmen, Congresswomen, judges, regarding specific details of operations regarding the war. Congress has oversight, Congress has the power of the purse, Congress must approve wars (which they did twice regarding Iraq and Afghanistan). But as to the day to day fighting the enemy (with guns, spies, planes, boats, etc.). That is left to the commander in chief.</p>
<p>To correct reshufflex above, it was 16 Dem Senators and 41 Dem House members who voted with the majority on the new FISA law. Or as LAK would say &quot;the law&quot;. A law signed by the president. To me, unless the Supremes say otherwise, is &quot;the law&quot;. Ergo, I draw the line with the Supreme Court. I don&#39;t draw the line where Prof Stone or Prof Tribe say it should be drawn. Their partison colors shine through pretty loudly.</p>LAK commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee08ff888342007-08-16T22:25:20Z2007-08-16T22:30:04ZLAKLet's just erase article III shall we? Who needs the third branch and the constitution anyway. The Founders didn't rally...<p>Let&#39;s just erase article III shall we? Who needs the third branch and the constitution anyway. The Founders didn&#39;t rally fear the tyranny of the majority and weren&#39;t concerned about the political branches at all anyway. So long as Congress tacitly assents to the Executive branch&#39;s actions, why even consult the Constitution or the Judicial branch? Resh, you are some kind of legal genius. Why didn&#39;t we consider doing away with the constitution and the Courts before???</p>
<p><br />
Back to digging my terrorist bunker. I&#39;ll be safe there when the bad guys come!<br />
</p>reshufflex commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee07ec788342007-08-16T21:40:30Z2007-08-16T21:40:39ZreshufflexCatapult- "Where, Frederick, do you draw the line as to when an otherwise unfettered federal government must bow to the...<p>Catapult-</p>
<p>&quot;Where, Frederick, do you draw the line as to when an otherwise unfettered federal government must bow to the rule of law? &quot;</p>
<p>Not to speak for Fred, or anyone, but Justice Jackson more than suitably answered this essential question-whence this mystical line of judicial demarcation-in &quot;Youngstown.&quot; His answer brilliantly established the goal posts. He noted that the executive&#39;s inherent-power boundary is either at its maximum &quot;zenith&quot; or in a &quot;zone of twilight,&quot; directly proportional to the congressional pretext (aka, to the expressed will of congress.) </p>
<p>But with respect to this new FISA legislation, a dilemma arises. (And the dilemma gets worse if the post-911 statutes, whicg gave the president virtually unlimited range to protect our asses, is added to the equation.) The dilemma is that the president is clearly comporting to the legislative will and its episodic take-no-prisoners directives; to wit, no less than 12 democrats supported the FISA legislation.</p>
<p>It was one thing when the TSA rested solely on the attorney general&#39;s legal hubris; it is quite another to treat the new FISA statute in a similar vein when all the king&#39;s men see eye to eye with congress-in terms of the statute-and especially when congress is of the opposite party.</p>
<p>This matter isnt about screaming &quot;state secrets.&quot; This is about the state wanting to act on secrets before they become screams. Or so it appears.</p>
<p><br />
</p>
<p><br />
</p>Catapult commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ecb93b488332007-08-16T17:53:27Z2007-08-16T17:53:28ZCatapultThis is about line-drawing. Even Frederick must agree that the line has to be drawn somewhere (preferably short of totalitarianism)....<p>This is about line-drawing. Even Frederick must agree that the line has to be drawn somewhere (preferably short of totalitarianism). So the real question is: Where would Frederick draw the line, and on what basis?<br />
A good place to start might be to query Frederick&#39;s take on Wednesday&#39;s oral arguments to the three-judge appellate panel in San Francisco concerning the Terrorist Surveillance Program (TSP). According to news reports, all three judges were skeptical, if not downright incredulous, as to the Justice Dept.&#39;s argument that the plaintiffs did not have standing because they could not prove they suffered an injury-in-fact and that the &quot;state secrets&quot; privilege barred the litigants from even pursuing their case. The facts of that case may be sufficient to elude the Sixth Circuit&#39;s decision earlier this year that the ACLU&#39;s case on the same issues was properly dismissed for lack of demonstrable standing. <br />
So the problem is not Frederick&#39;s &quot;old suicide pact thing and all&quot; but, rather, where we draw the line in this country as to what the government can do and to whom and what procedural mechanisms exist to challenge such designations. Anything with &quot;state secrets&quot; in it makes me think of the KGB or the Stasi or Maoist China. Where have all the real conservatives gone? The more down this road that we go, the more I weep for the future. I don&#39;t trot out the &quot;slippery slope&quot; reasoning too often, but here it seems warranted -- what is to stop an overzealous federal government from stickering the phrase &quot;state secrets&quot; on increasingly more information? <br />
Where, Frederick, do you draw the line as to when an otherwise unfettered federal government must bow to the rule of law? </p>LAK commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ecb926c88332007-08-16T17:49:49Z2007-08-16T17:49:58ZLAKAnd frederick, so far thre hasn't been any decisions on teh merits. We're talking about the merits here. It is...<p>And frederick, so far thre hasn&#39;t been any decisions on teh merits. We&#39;re talking about the merits here. It is still NSA 0, ACLU 0, I promise. Some copout standing decision doesn&#39;t factor in here, especially when there are two moer cases pending in the 9th circuit, and even if they fail to prove standing, one day thegovernment will have to account for its practices. Only then can we start keeping score. Stick to the medicine buddy, your interpretation and understanding of our system of government and the court system is obviously wanting.</p>LAK commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee03ce488342007-08-16T17:47:28Z2007-08-16T17:47:36ZLAKNo Frederick, you're wrong. What the legislature says isn't necessarily the law. It has to get past the executive branch...<p>No Frederick, you&#39;re wrong. What the legislature says isn&#39;t necessarily the law. It has to get past the executive branch and it has to pass consitutional muster. The latter is certainly the case here. We have a constitution precisely to keep the will of the frightened uneducated majority from violating the rights of others. We have THREE branches of government. Becasue two of them are in bed together over a politially expediant issue doesn&#39;t mean what they say is law if it violates the constitution. I have no idea what youa re talking about with respect to &quot;legal scholars.&quot; I have not seen any indication that that is the case. In fact, from what I&#39;ve seen of commentary from mainstream law professors, you are way off the mark. Fringe conservatives who are willing to read miles into Article II while ignoring the plain language of amendments are the only ones.</p>Frederick Hamilton commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee0388c88342007-08-16T17:38:52Z2007-08-16T17:38:55ZFrederick HamiltonLAK, Last I looked we are sticking by the rule of law. A law was just passed I believe with...<p>LAK,<br />
Last I looked we are sticking by the rule of law. A law was just passed I believe with 16 Dems in the Senate and 41 Dems in the House on board. So far in court it is NSA 1 ACLU 0. Your version of &quot;the law&quot; doesn&#39;t seem to be carrying the day.</p>
<p>Just who has &quot;broken the law&quot;?</p>
<p>More &quot;legal scholars&quot; think it is constitutionally allowed to spy on foreign terrorists whose communications pass through our phone lines and servers than think otherwise. </p>
<p>Last I looked we are a nation of laws. You just don&#39;t like the way the laws are being used against our enemies. So be it.</p>
<p>I&#39;ll buy you a bottle of good claret when the first member of either the NSA, CIA or FBI or member of the present administration is convicted or goes to jail for violating the law REGARDING these foreign intercepts.</p>
<p>Thank goodness Prof Stone other law school professors don&#39;t get to write the laws. I like it in the hands of our representatives in Congress. That&#39;s the law.</p>LAK commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ee02c2688342007-08-16T17:12:21Z2007-08-16T17:16:09ZLAKFrederick, you are clearly not living in the real world on this one if you are willing to sacrifice our...<p>Frederick, you are clearly not living in the real world on this one if you are willing to sacrifice our precious rule of law for a flase sense of security. Not only is it debatable that warrantless phone and email monitoring is any more effective than targeted monitoring for cause, there are plenty of alternative less restrictive practices that could make us safer, like scaling down our bloated military presence all over the world. Believe it or not, following the constitution and the rule of law, the clear established precedent of the Supreme Court&#39;s 4th Amendmemt Jurisprudence,is not a suicide pact in this case. There is no indication that warrantless spying on citizens is making us any safer, or that sticking to the law would put us in jeopardy. </p>
<p>What happened to the recognizition that the rule of law, that our checks and balances to prevent stepping onto this slippery slope, are what separate us from them? Adherence to and participation in the creation of the law is what makes us better than other nations.</p>Frederick Hamilton commented on 'The New FISA'tag:typepad.com,2003:6a00d8341c031153ef00e54ecb5fea88332007-08-16T13:32:38Z2007-08-16T13:32:38ZFrederick HamiltonSmall government conservative types still live in the real world where there will always be a "government". We small government...<p>Small government conservative types still live in the real world where there will always be a &quot;government&quot;. We small government conservatives still believe in the phrase &quot;defend the shores, deliver the mail and get the hell out of my life&quot;. Except in todays age you could make a case for not even having government deliver the mail (FedEx, UPS, et al). But defending the country from those hell bent on killing you and me is something we small government conservative types support. The old suicide pact thing and all.</p>